ARNOLD, V.C.J.
Pertinent to the issues tendered the facts are not in dispute. Petitioner, Brickell, and one Kessler were candidates for Representative, 5th Legislative District, Oklahoma County, in the July 25, 1950, run-off primary. According to the official returns to the State Election Board Kessler received 20 votes more than Brickell who sought a recount of the votes cast in fourteen designated precincts of said district under and by virtue of the authority of 26 O. S. 1941 §391 which was ordered by the State Election Board under mandate of this court.
The recount was begun and proceeded without interruption until nine boxes or the votes cast in nine of the designated precincts were counted. At this point, it appearing that Brickell was two votes ahead, he demanded that the recount cease; Kessler demanded that the recount proceed; it did proceed.
When the votes in the fourteen precincts asked to be recounted by contestant had been counted, contestee had a majority of nine votes. Prior to the time that the count of the fourteen boxes had been completed Kessler had filed an application asking that the remainder of the ballots cast in the additional precincts of the district be counted and had deposited $250 to defray the expense thereof. This was objected to by contestant as in the instance of the action of the Board in counting the ballots in the boxes nine to fourteen inclusive included in the original request of contestant. All the ballots cast in the legislative district were counted. According to the result thereof Kessler had sixteen more votes than Brickell. During the course of the [363]*363hearing or recount contestant offered to show that various irregularities, election law violations, double voting, etc., had occurred in Precinct 29 of Ward 3 which is partially in Oklahoma City and the outlying adjacent territory.
In this original action here contestant seeks to have the Oklahoma County Election Board enjoined from making a return to the State Election Board including the vote cast in Precinct 29 and seeks a writ requiring the State Election Board to issue him a certificate of nomination, or in the alternative to require the county election board to hear the evidence offered and make its decision in accordance therewith.
The right to maintain an action, here or elsewhere, to contest the right or title to a certificate of nomination of a political party has heretofore been settled by this court.
The remedies of the ancient writ of quo warranto have been preserved by territorial statute, our Constitution and our statutes since statehood, though the form thereof was abolished by statute. Section 458, Compiled Oklahoma Statutes, 1921, provided:
“The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished, and the remedies heretofore obtainable in those forms may be had by civil action.”
Section 459 thereof provided:
“Such action may be brought in the Supreme Court or in the district court in the following cases: . . . Sixth. For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto.”
Section 6104, Comp. Okla. Stats. 1921, provided:
“The ballot shall be counted and return made in such primary election as by law provided for general elections: and primary elections shall in all respects conform to the laws governing general elections, except as herein otherwise provided, and all provisions of the laws governing general elections not in conflict with this chapter are hereby made applicable and put in force herewith.”
Section 6123 thereof provided:
“All contests arising out of primary elections shall be settled and decided in the same manner as is now or may hereafter be by law provided for general elections. . . .”
In Jarman v. Mason et al., 102 Okla. 278, 229 P. 459, we said:
“A civil action authorized by sections 458 and 459, Comp. Stats. 1921, to obtain relief similar to that anciently obtainable by writ of quo warranto is, by section 6123, Comp. Stats. 1921, made the proper remedy to try the title of one to an already issued certificate of nomination by a political party for public office obtained in a primary election, provided that the relief is sought upon issues which could not have been adequately determined by a recount of ballots authorized by section 6107, Comp. Stats. 1921.”
By construing those provisions of the Compiled Laws of 1921 together, the remedy in the nature of quo warranto was extended to a primary election contest or action to test title to nomination of a political party on grounds not provided by contest statutes. However, this court specifically pointed out in the case of Jarman v. Mason, supra:
“Neither the ancient writ of quo warranto nor information in the nature of a quo warranto was used to determine the right of one to the nomination of a political party for public office. In many states such right cannot be enforced even by such civil action in the nature of quo warranto proceedings. It is generally so held in the absence of specific legislation to the contrary. In fact, there exists at common law no right to contest in the courts the right to the nomination of a political party for public office.”
In 1925, 12 O. S. 1941 §1531 was passed and became effective. It is provided therein:
“The writ of quo warranto, and proceedings by information in the nature [364]*364of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township or city election boards, and before the expiration of thirty days after such official is inducted into office; . . . and provided further, that this Act shall not apply to primary election.”
The succeeding section provides the grounds for the action in the nature of quo warranto.
In 1926, Dabney v. Hooker, 121 Okla. 193, 249 P. 381, was written. The facts and issues in that case, as stated by this court, were:
“At the primary election held August 3, 1926, Edwin Dabney and O. H. Searcy and others were candidates for the nomination of the Democratic party for the office of Attorney General. The State Election Board, upon a canvass of the returns, issued its certificate of nomination to Dabney. Thereupon Searcy instituted a civil action in the district court of Oklahoma county to try the title to such nomination. Dabney objected to the district court of Oklahoma county taking jurisdiction of said contest, on the ground that a contest of the result of a primary election is not a legal right in the absence of a statute specifically granting the right to such contest, and that there is no statute in this state authorizing or permitting a defeated candidate in a primary election to maintain a contest against another to whom a certificate of nomination has been issued. This objection was overruled. This original proceeding was then instituted in this court by Dabney, as plaintiff, filing his petition for a writ of prohibition to issue against Sam Hooker, judge of the district court of Oklahoma county, and O. H.
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ARNOLD, V.C.J.
Pertinent to the issues tendered the facts are not in dispute. Petitioner, Brickell, and one Kessler were candidates for Representative, 5th Legislative District, Oklahoma County, in the July 25, 1950, run-off primary. According to the official returns to the State Election Board Kessler received 20 votes more than Brickell who sought a recount of the votes cast in fourteen designated precincts of said district under and by virtue of the authority of 26 O. S. 1941 §391 which was ordered by the State Election Board under mandate of this court.
The recount was begun and proceeded without interruption until nine boxes or the votes cast in nine of the designated precincts were counted. At this point, it appearing that Brickell was two votes ahead, he demanded that the recount cease; Kessler demanded that the recount proceed; it did proceed.
When the votes in the fourteen precincts asked to be recounted by contestant had been counted, contestee had a majority of nine votes. Prior to the time that the count of the fourteen boxes had been completed Kessler had filed an application asking that the remainder of the ballots cast in the additional precincts of the district be counted and had deposited $250 to defray the expense thereof. This was objected to by contestant as in the instance of the action of the Board in counting the ballots in the boxes nine to fourteen inclusive included in the original request of contestant. All the ballots cast in the legislative district were counted. According to the result thereof Kessler had sixteen more votes than Brickell. During the course of the [363]*363hearing or recount contestant offered to show that various irregularities, election law violations, double voting, etc., had occurred in Precinct 29 of Ward 3 which is partially in Oklahoma City and the outlying adjacent territory.
In this original action here contestant seeks to have the Oklahoma County Election Board enjoined from making a return to the State Election Board including the vote cast in Precinct 29 and seeks a writ requiring the State Election Board to issue him a certificate of nomination, or in the alternative to require the county election board to hear the evidence offered and make its decision in accordance therewith.
The right to maintain an action, here or elsewhere, to contest the right or title to a certificate of nomination of a political party has heretofore been settled by this court.
The remedies of the ancient writ of quo warranto have been preserved by territorial statute, our Constitution and our statutes since statehood, though the form thereof was abolished by statute. Section 458, Compiled Oklahoma Statutes, 1921, provided:
“The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished, and the remedies heretofore obtainable in those forms may be had by civil action.”
Section 459 thereof provided:
“Such action may be brought in the Supreme Court or in the district court in the following cases: . . . Sixth. For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto.”
Section 6104, Comp. Okla. Stats. 1921, provided:
“The ballot shall be counted and return made in such primary election as by law provided for general elections: and primary elections shall in all respects conform to the laws governing general elections, except as herein otherwise provided, and all provisions of the laws governing general elections not in conflict with this chapter are hereby made applicable and put in force herewith.”
Section 6123 thereof provided:
“All contests arising out of primary elections shall be settled and decided in the same manner as is now or may hereafter be by law provided for general elections. . . .”
In Jarman v. Mason et al., 102 Okla. 278, 229 P. 459, we said:
“A civil action authorized by sections 458 and 459, Comp. Stats. 1921, to obtain relief similar to that anciently obtainable by writ of quo warranto is, by section 6123, Comp. Stats. 1921, made the proper remedy to try the title of one to an already issued certificate of nomination by a political party for public office obtained in a primary election, provided that the relief is sought upon issues which could not have been adequately determined by a recount of ballots authorized by section 6107, Comp. Stats. 1921.”
By construing those provisions of the Compiled Laws of 1921 together, the remedy in the nature of quo warranto was extended to a primary election contest or action to test title to nomination of a political party on grounds not provided by contest statutes. However, this court specifically pointed out in the case of Jarman v. Mason, supra:
“Neither the ancient writ of quo warranto nor information in the nature of a quo warranto was used to determine the right of one to the nomination of a political party for public office. In many states such right cannot be enforced even by such civil action in the nature of quo warranto proceedings. It is generally so held in the absence of specific legislation to the contrary. In fact, there exists at common law no right to contest in the courts the right to the nomination of a political party for public office.”
In 1925, 12 O. S. 1941 §1531 was passed and became effective. It is provided therein:
“The writ of quo warranto, and proceedings by information in the nature [364]*364of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township or city election boards, and before the expiration of thirty days after such official is inducted into office; . . . and provided further, that this Act shall not apply to primary election.”
The succeeding section provides the grounds for the action in the nature of quo warranto.
In 1926, Dabney v. Hooker, 121 Okla. 193, 249 P. 381, was written. The facts and issues in that case, as stated by this court, were:
“At the primary election held August 3, 1926, Edwin Dabney and O. H. Searcy and others were candidates for the nomination of the Democratic party for the office of Attorney General. The State Election Board, upon a canvass of the returns, issued its certificate of nomination to Dabney. Thereupon Searcy instituted a civil action in the district court of Oklahoma county to try the title to such nomination. Dabney objected to the district court of Oklahoma county taking jurisdiction of said contest, on the ground that a contest of the result of a primary election is not a legal right in the absence of a statute specifically granting the right to such contest, and that there is no statute in this state authorizing or permitting a defeated candidate in a primary election to maintain a contest against another to whom a certificate of nomination has been issued. This objection was overruled. This original proceeding was then instituted in this court by Dabney, as plaintiff, filing his petition for a writ of prohibition to issue against Sam Hooker, judge of the district court of Oklahoma county, and O. H. Searcy, as defendants, to prohibit the said district court and judge thereof from proceeding in any manner in said cause wherein Searcy was seeking to contest said nomination.”
In answer to the question posed by it, “Is there any authority, statutory or otherwise, which provides for a contest of this nature?” this court said “At common law there existed no right to contest in the courts the title to the nomination of a political party for public office,” and cited the Jarman case, supra, and others.
The provision of section 1531, supra, wherein the cause of action in the nature of quo warranto was created, “. . . this act shall not apply to primary elections,” was held valid in the Dabney case and had the effect of excluding the extension of the cause of action to primary elections and it was therein so held. In this connection this court said:
“It has also been argued that a defeated candidate, who makes charges of fraud and corruption, should at least have an opportunity to establish the same by proof. Be that as it may, there is no statutory law authorizing a contest of a primary election such as was instituted in the district court of Oklahoma county.”
The proviso is still in effect and unchanged.
In 1930, in construing the 1929 run-off primary law (Looney v. County Election Board, 145 Okla. 25, 291 P. 554) this court reiterated the holding of the Dabney case, supra, that no cause of action existed at common law to test title to nomination at a primary election, and said:
“In Dabney v. Hooker, District Judge, supra, it was held that the statutory procedure for election contests theretofore existing was repealed by chapter 96, Session Laws of 1925, and that thereafter there was no statutory authority for contests for primary election in the district courts of Oklahoma. In announcing that decision this court called attention to the fact in clear and unambiguous language, and Mr. Justice Branson in a special concurring opinion called attention to the fact that the Legislature doubtless did not realize the farreaching consequence of its act when it provided for the repeal of the prior primary election contest procedure.
[365]*365“It would seem that the language of this opinion was sufficiently clear to attract the attention of subsequent Legislatures and that had the rule announced in that case not met with the approval of subsequent Legislatures, it would have been corrected by the Legislature. No such correction has been made.
“This court is a judicial and not a legislative body. It is not its purpose to provide legislation. It has called the attention of the Legislature to this condition and nothing has been done to correct the same.”
This court is committed to the rule that at common law there existed no right to contest the title to the nomination of a political party to public office in the courts and none now exists unless specially provided for by statute.
An election board has only such power and authority as is directly vested in it by the Legislature. The authority it may exercise and the duty it may be required to perform must appear in the legislative act it purports to act under. It must stay within its delegated authority and may not be forced to exercise power not granted by the Legislature. It is a privilege to seek a party’s nomination for office and one who seeks office in this exclusive manner must do so under such hazards and handicaps as the Legislature sees fit to permit to burden him. The Legislature was not obliged to make any provision for a contest of a primary election. The provision made is exclusive. All authorities sustain these principles.
In section 391, supra, the Legislature said that a candidate for party nomination may file an application for “a recount of the ballots.” If this is done in the time and manner prescribed the Legislature said “it shall be the duty of said election board to order said recount and proceed, with the same . . .” There is no other provision in the section which indicates the intention of the Legislature to enlarge the scope of the inquiry or contest. No mention is made in the section of a contest on any other ground than “recount of ballots.” The fact that the recount provided applies to both the first and run-off primaries, with only three weeks intervening between the two, and all other circumstances indicate that the Legislature did not intend the scope of the inquiry to go beyond the actual recounting of the ballots in the boxes examined. The only right granted the candidate is to ask for and be accorded a recount and the only duty imposed upon the board is to recount the ballots determined by the district court and judge thereof to have been preserved as prescribed. That is what the election board did in this instance and that is .all it could do. It has no legislative authority to determine such questions as illegal conduct at the voting place, fraud, illegal voting, etc., and therefore did not err in refusing to entertain testimony thereon. To discard ballots reasonably capable of counting, for such reasons, would be inconsistent with its positive legislative mandate to count all the ballots found “to have been so preserved and are the identical ballots cast by the voters and have not been exposed to the reach of unauthorized persons so as to afford a reasonable . opportunity of their having been changed or tampered with.”
In that part of section 391 dealing with “Hearing and Recount,” this sentence appears:
“At said hearing, the parties in interest may, without further pleading, offer such legal evidence in support of and in opposition to such contest as they may have to offer, and upon the completion of such hearing, the election board shall render its decision, and such decision shall be final and conclusive of all rights involved.”
The petitioner argues this shows contemplation or intention on the part of the Legislature that the scope of inquiry or contest might far exceed just the recounting of the ballots.
Chapter 241, S. L. 1929, providing for recount in primary elections and being [366]*366the Act superseded by chapter 29, S. L. 1931, of which section 391, supra, is a part, contained provisions substantially' similar as to hearings, notice of filing of petition for recount, and authorizing issuance of subpoenas, as does said section 391. In Looney v. County Election Board, supra, which was decided in 1930 and just six months before the passage of chapter 29, S. L. 1931, this court said:
“The 1929 Act provides for a hearing of some sort. The secretary of the county election board is authorized to issue subpoenas for witnesses and the sheriff and his salaried deputies to serve the same. No continuance shall be granted for any purpose and no appeal shall be taken therefrom. . . .
“What, then, is the nature and purpose of the hearing? It is limited by the terms of the act to an investigation of alleged errors in the tabulation of the returns and to alleged alterations in the tabulation of said returns. It necessarily follows that there must be an investigation and determination of whether or not the ballots ‘had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with’ before there can be a recount of the ballots.”
The court added:
“Formerly that question was left to the determination of the courts, but since the Act of 1929 provides a complete procedure for primary election contests, this court must hold that that question must be determined by the county election board as a part of the hearing held prior to a recount of the ballots.”
The Act of 1931 (section 391, supra) provided that a judge of the district court sit with the election board and make the determination as to the integrity of the ballots above referred to, but did not extend the scope of such hearing, and we are of the opinion, and hold, that the hearing referred to in said section is confined to such matters as may be pertinent to a determination by the court of the proper preservation, etc., of the ballots, as a necessary precedent to the recount.
It is contended that the county election board erred in recounting the ballots included in the request of the petitioner, but purportedly waived by him because no provision of law is made therefor, and that it erred in recounting the ballots of the precincts of the district other than those requested by contestant because not requested by contestee in the manner required of contestant. We think a fair and reasonable interpretation of the provision of the statute:
“. . . that if at any time before such recount is complete the contestee requests a recount of any of the ballots cast in said county, for which a recount has not been requested by said contestant, such recount shall be had immediately and without delay in the same manner as provided for upon the application of such contestant,”
to be that the contestee may at any time before the recount is complete request of the county election board and have a recount of any of the ballots cast in the county which has not then been had upon the application of contestant, upon determination by the court of the proper preservation, etc., of such ballots as is provided in the Act. The requirements of the Act with reference to the filing of original application for recount and giving notice thereof have no application to the quoted provision.
The performance of the duty imposed upon county election boards to recount ballots cast at a primary election is ministerial and may not be controlled by this or the district courts and said boards cannot under our superintending control, article 7, section 2, Constitution, be required to perform a duty not enjoined upon them by law.
Writ denied.
[367]*367DAVISON, C.J., and CORN, GIBSON, LUTTRELL, HALLEY, and JOHNSON, JJ., concur. O’NEAL, J., dissents.